Digital Economy Act

Update (October 2012)

Ofcom have released a further draft of the Initial Obligations Code, which is central to the implementation of measures contained within the Digital Economy Act to prevent illegal peer to peer filesharing. The draft highlighted the contribution UCISA and others had made to the draft through consultation responses during the drafting of the Act and Code. The draft is currently with the European Commission for approval. The code notes the good practice highlighted in our responses, stating that “universities would continue to build on current, effective practice, in reducing/ preventing and monitoring copyright infringement”.

It is important to recognise that connections made via Janet are outside the scope of the Act.

The Digital Economy Act has attracted controversy from its inception. Although the Act passed into Law as part of the wrap up process at the end of the previous Parliament, it has not been implemented yet, the practical aspects of implementing the measures to deal with copyright infringement being delegated to Ofcom. They have issued on various aspects of the implementation including, in July 2010, one on the draft Initial Obligations Code which defines how the process will operate. Ofcom have responded to this consultation and have issued a further draft for consultation which UCISA responded to.

In late July/early August 2011 there were two developments on the question of whether courts have the power to order network providers to block access to websites. On 3 August the Government has announced that it will not be bringing into force sections 17 and 18 of the Digital Economy Act 2010, which would have created such a power. However the previous week the High Court decided that it already had the power, under section 97A of the Copyright Designs and Patents Act 1988, to order BT to block access to newzbin (a website that had already been found to be a serious infringer of copyright) and its apparent successor newzbin2. The judgement requires BT to add newzbin URLs to the system it already deploys to restrict access to child abuse images identified by the Internet Watch Foundation. Further cases have followed. Commentary on the initial judgment is available on Andrew Cormack's blog.

The Commons Select Committee on Culture, Media and Sport launched an inquiryinto the Act and its likely effectiveness in late 2010. The inquiry was suspended pending completion of the legal action mentioned above. The announcement came after UCISA had submitted our evidence; we will continue to review the planned implementation of the Act and will submit revised evidence if the inquiry is reopened.

Ofcom's response to the initial consultation on the Initial Obligations Code was delayed in part by the judicial review of the Act institgated by BT and TalkTalk in February 2011. The review found in favour of BT and Talk Talk on only one issue: that it was unlawful to mandate for ISPs to contribute to the costs of Ofcom. The Cost Sharing Regulations, which were already law, have been re-issued with amendments to reflect the outcome of the judicial review hearing. However ISPs will still have to contribute 25% of their own costs in implementing the Initial Obligations Code and of handling any Appeals, with all remaining costs coming from rightsholders. An Ofcom paper considering the costs involved in the appeals process has also been published; the Government press release suggested a fee of £20 would be levied against subscribers wishing to appeal.